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Pandit Ish NaraIn Upadhia Vs. Rameshar Lohar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All433; 78Ind.Cas.164
AppellantPandit Ish NaraIn Upadhia
RespondentRameshar Lohar and anr.
Excerpt:
allahabad high court rules, ch. iii. rule 3 - appeal--evidence, absence of--certificate not filed--ground, whether can be argued--custom--blacksmith, additions made by, to dwelling-- zemindar, faihire of, to object--acquiescence--renewal of additions. - - he continued, i am satisfied that these constructions were in the place of the old ones and so the plaintiff did not protest when the new ones were built in place of the old ones and now owing to a criminal case he has lodged the suit. ' what he meant by the latter part of his finding was that the blacksmiths had got themselves disliked by the zemindar by giving evidence in a criminal case contrary to his views. no appeal from an appellate decree presented by an advocate, attorney or vakil shall be admitted on any such ground as is in..........is well founded in fact.3. now it is urged to me that as the appeal was admitted for hearing by a learned judge of this court it is not open to me to apply that rule and that, in any circumstances, i could permit the certificate to be filed now. i read the rule as imperative. unless the certificate is present the matter cannot be argued in spite of the fact that the appeal has been admitted to a hearing. it does not follow that the appeal was admitted on this ground, for there are other grounds which have been argued. in respect of the second point that i might allow the certificate to be filed now i note that this appeal was filed on the 10th of july 1922. the certificate should have been filed within, at the most, a few months. i hold a strong view that it is no use making rules.....
Judgment:

Stuart, J.

1. The plaintiff appellant is the zemindar of village Sari. The defendants-respondents are two blacksmiths living in the same village. The plaintiff sued to eject the defendants from a saiban, a dalan and a shed on the allegation that these were recent constructions upon his land. The defendants are tenants and residents in the village in which they have a house. They carry on business as blacksmiths there. The Munsif found that one of these structures was an old one and dismissed the suit in respect of it. He decreed the blacksmith's ejectment from the two others. The blacksmiths appealed to the learned Subordinate Judge. The zemindar did not appeal in respect of the dismissal of the portion of his suit. The learned Subordinate Judge decided as follows He found that the two structures from which the Munsif had ordered the defendants' ejectment were at least eight years old. He continued, ' I am satisfied that these constructions were in the place of the old ones and so the plaintiff did not protest when the new ones were built in place of the old ones and now owing to a criminal case he has lodged the suit.' What he meant by the latter part of his finding was that the blacksmiths had got themselves disliked by the zemindar by giving evidence in a criminal case contrary to his views. The learned Subordinate Judge then dismissed the whole of the suit. The zemindar has appealed in respect of the two buildings from which the Munsif ordered the blacksmiths to be ejected. He takes the position that there was no evidence on the record to support the finding that these two structures were made in the place of old ones. This ground of appeal is not open to him under the High Court rules--see Rule 3, Chapter III, as no certificate is filed.

2. 'If the ground of appeal is that there is in' fact on the record no evidence or admission to support the decree, the ground shall so state, and shall further state specifically the material finding in support of which there is no evidence or admission on the record.

No appeal from an appellate decree presented by an Advocate, Attorney or Vakil shall be admitted on any such ground as is in this rule referred to, unless such Advocate, Attorney or Vakil certifies under his hand the memorandum of appeal that he has examined the record and that, in his opinion, such ground is well founded in fact.

3. Now it is urged to me that as the appeal was admitted for hearing by a learned Judge of this Court it is not open to me to apply that rule and that, in any circumstances, I could permit the certificate to be filed now. I read the rule as imperative. Unless the certificate is present the matter cannot be argued in spite of the fact that the appeal has been admitted to a hearing. It does not follow that the appeal was admitted on this ground, for there are other grounds which have been argued. In respect of the second point that I might allow the certificate to be filed now I note that this appeal was filed on the 10th of July 1922. The certificate should have been filed within, at the most, a few months. I hold a strong view that it is no use making rules unless one keeps them and that if a rule of this Court is disobeyed and the Court allows it, as I am asked to do, to be complied with some 18 months afterwards, the rule is not likely to be very effective, for it will always be possible to break the rule at first, and to comply with it two or three years afterwards.

4. I now take the appeal upon the other points. It is urged by the learned Counsel for the appellant that on the finding of fact the appeal should succeed. His case is that acquiescence gives no title. This argument is beside the point. What I find the Subordinate Judge to have concluded is this, that constructions similar to these had existed for some twelve years for the convenience of these blacksmiths upon the sites on which they now stand, and the only conclusions to be drawn from the fact that the blacksmiths worked in the village are that these constructions were for their use in carrying on their trade or business or in some way accessory to it. As the original constructions had been made many years ago the obvious presumption is that the zemindar, not only had acquiesced in their having been made but accepted them as reasonable appurtenances of the blacksmiths' dwellings and when those constructions came to an end the blacksmiths had every right to replace them as they were before. I find that they have replaced them as they were before on the finding of the learned Subordinate Judge. His conclusion is, therefore, correct and I dismiss this appeal with costs.


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